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Vadapalli Varadacharlu Vs. Khandavilli Narasimha Charlu - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1926Mad258
AppellantVadapalli Varadacharlu
RespondentKhandavilli Narasimha Charlu
Cases ReferredJoshi Shib Prakash v. Jhenguria A.I.R.
Excerpt:
- - , is wider than order 39 and covers the present case, but i think that contention must be at once negatived in view of the language of the section which says 'in order to prevent the ends of justice from being defeated the court may, if it is so prescribed,'that is to say, the court is given power provided that the rules make provision for the exercise of that power. the section is clearly governed by order 39, which contains the rules prescribed. 144. the reason for holding this view is not very clearly stated in that judgment and it appears to be opposed to the principles adopted by a full bench of this court in neelaveni v......the district lodge.2. it is now contended that such an injunction will come under order 39, either rule 1 or rule 2. it certainly cannot come within the language of rule 1, for there is no suggestion that the property of which delivery is to be given is in danger of being wasted, damaged or alienated. it is then argued that rule 2 would be applicable and that this is an injunction to restrain the defendant from committing other injury of any kind.' the alleged injury is the execution of a decree lawfully obtained. in order to hold that that does constitute an injury, it is necessary to hold that that decree is illegal, for, if the decree is legal, the defendant has even right to execute it, and in doing so cannot be said to commit any injury.3. it is then argued that section 94, civil.....
Judgment:

Phillips, J.

1. This is a petition for revising an order of the District Court of Godavari refusing to grant an injunction restraining the execution of a decree obtained by the defendant against the plaintiff's father. The Subordinate Judge held that he had no jurisdiction to grant such an injunction and this view was upheld by the District lodge.

2. It is now contended that such an injunction will come under Order 39, either Rule 1 or Rule 2. It certainly cannot come within the language of Rule 1, for there is no suggestion that the property of which delivery is to be given is in danger of being wasted, damaged or alienated. It is then argued that Rule 2 would be applicable and that this is an injunction to restrain the defendant from committing other injury of any kind.' The alleged injury is the execution of a decree lawfully obtained. In order to hold that that does constitute an injury, it is necessary to hold that that decree is illegal, for, if the decree is legal, the defendant has even right to execute it, and in doing so cannot be said to commit any injury.

3. It is then argued that Section 94, Civil P.C., is wider than Order 39 and covers the present case, but I think that contention must be at once negatived in view of the language of the section which says 'in order to prevent the ends of justice from being defeated the Court may, if it is so prescribed,' that is to say, the Court is given power provided that the rules make provision for the exercise of that power. The section is clearly governed by Order 39, which contains the rules prescribed.

4. A further contention is put forward that the injunction may be granted under the inherent powers of the Court under Section 151, Civil Procedure Code, and the petitioner relies, on a decision of the Lahore High Court; Kanshi Ram v. Sharaf Din A.I.R. 1923 Lah. 144. The reason for holding this view is not very clearly stated in that judgment and it appears to be opposed to the principles adopted by a Full Bench of this Court in Neelaveni v. Narayana Reddi [1920] 43 Mad. 94 followed in Krishnaswamy v. Chengalraya A.I.R. 1924 Mad. 114 and in the case of Joshi Shib Prakash v. Jhenguria A.I.R. 1924 All. 446. The principle there laid down is that when the Code makes provision for a certain procedure the Code must be deemed to be exhaustive in that respect and the provisions of Section 151 cannot he invoked in opposition to these provisions. Here the Code lays down in Section 94 that the Court shall only have power if it is given by rules framed under the Code. It, therefore, seems to me impossible to hold that when rules have been framed to give the Court power further power should be given by Section 151. If then the principle laid down in the Full Bench of this Court is correct, and I see no reason to doubt its correctness, it is applicable to this case also, and the District Judge was right in his order.

5. I may add that from the facts put before me here, although they were not considered by the lower Courts, the petitioner does not seem to have much ground for his present complaint.

6. The petition is dismissed with costs.


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